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2024 Supreme(Online)(DEL) 16135
HIGH COURT OF DELHI
Amit Mahajan, J
SWATI MALIWAL – Appellant
Versus
STATE – Respondent
CRL.REV.P.-236/2023
The court affirmed that public servants can be charged with criminal misconduct under the Prevention of Corruption Act for nepotism and illegal appointments, even without direct personal gain.
Headnote:(A) Code of Criminal Procedure, 1973 - Sections 397 and 482 - Indian Penal Code, 1860 - Section 120B - Prevention of Corruption Act, 1988 - Sections 13(1)(d) and 13(2) - Charges framed against accused for conspiracy and criminal misconduct in public service regarding illegal appointments in Delhi Commission for Women - Allegations of nepotism and violation of financial regulations - Sufficient prima facie material found to proceed with charges. (Paras 1, 11, 72, 104)
(B) Criminal Misconduct - Definition and elements of criminal misconduct under Section 13(1)(d) of the PC Act - Public servant can be guilty even if no direct pecuniary advantage is obtained for themselves. (Paras 92, 100)
(C) Autonomy of DCW - The Delhi Commission for Women is not entirely autonomous and must adhere to financial regulations and guidelines. (Paras 56, 72)
(D) Framing of Charges - The court must only ascertain if prima facie case exists without conducting a mini trial. (Paras 66, 70) (E) Nepotism - Allegations of nepotism and lack of transparency in appointments raise grave suspicion warranting charges. (Paras 100, 102)
Facts of the case:
The petitions challenge the framing of charges against accused persons for conspiracy and corruption related to illegal appointments in the Delhi Commission for Women, allegedly benefiting associates of a political party.
Findings of Court:
The court found sufficient prima facie evidence to proceed with charges against the accused for conspiracy and criminal misconduct.
Issues: The main issues were whether the charges were justified based on the allegations of nepotism and violation of financial regulations.
Ratio Decidendi: The court ruled that the allegations of nepotism and lack of transparency in appointments justified the framing of charges, emphasizing that a public servant can be guilty of misconduct even without direct personal gain.
Result: Petitions dismissed.
JUDGMENT
1. The present petitions are filed under Section 397 read with Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’), challenging the order on charge dated 08.12.2022 (hereafter ‘impugned order’), in CC No. 107/2019 arising out of FIR No. 15/2016, registered at ACB, whereby the learned Trial Court had directed for charges to be framed against the accused persons for the offences under Section 120B of the Indian Penal Code, 1860 (‘IPC’) read with Sections 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (‘PC Act’) as well as for the substantial offence under Section 13(2) read with Section 13(1)(d)(ii) of the PC Act.
BRIEF FACTS OF THE CASE
2. On 11.08.2016, an undated complaint of Ms. Barkha Shukla Singh, Ex- MLA, was received in the Anti-Corruption Bureau, Delhi. The gist of the complaint was that the Government of Delhi had adopted several untoward and illegal practices to benefit the aids and associates of Aam Aadmi Party (‘AAP’). It was alleged that the benefits were financial in nature and were being provided by the exchequer of Delhi by irregularly engaging the associates of the Party on contract basis. It was alleged that one such organisation where such appointments were made was Delhi Commission for Women (hereafter ‘DCW’), where several individuals, who are/were associated with AAP, were appointed without following the due procedure and without any publication of vacancies and inviting applications. It was alleged that as such, pecuniary benefits were granted to said individuals by engaging their service on contract basis.
3. On the complaint, a preliminary inquiry was conducted and thereafter, the FIR was registered on 19.09.2016, for the offences under Sections 13(1)(d) of the PC Act and Sections 409/120B of the IPC. Pursuant to the registration of the FIR, the investigation was conducted and the chargesheet was filed.
4. During investigation, it was learnt that DCW was reconstituted and notified on 27.07.2015 by the Government of NCT of Delhi, with the accused Swati Maliwal as its Chairperson. The other three accused persons were members in DCW. On investigation, it was found that the accused persons had made appointments of 87 persons as against the existing sanctioned posts of 26 in DCW between 06.08.2015 to 01.08.2016, and out of those 87 persons, at least 20 persons were directly found to be associated with AAP.
5. During investigation, the accused Swati had claimed that 90 appointments were made between 06.08.2015 to 01.08.2016, however, the investigating agency could only ascertain the appointment of 87 persons and could not find any documentary proof of the remaining three appointments.
6. It was also alleged that all the appointments were made without following any procedure, rules and regulations and the General Finance Rules (‘GFR’) were flouted while fixing, enhancing and disbursing remuneration to those appointed persons.
7. Further, allegations were made that one person, namely, Mr. Prem Prakash Dhal had been appointed as Member Secretary of DCW without approval of the Lt. Governor without following the prescribed rules and regulations. It was also alleged that against the budget estimate of ₹7 crores, a lump sum of ₹6.76 crores was released to DCW in one go instead of in instalments.
8. It is alleged that no information was provided by DCW to the Department of Women and Child Development (‘WCD’) regarding the increase of the strength of the staff, despite the written request and visit of WCD officials. The DCW, during the investigation, had replied that it had conducted interviews for the alleged recruitments but no such record was ever provided. It is alleged that even though the investigation agency had sought for the details of the interviews conducted by the DCW for the recruitments made, however, no details of the same were provided.
9. It is also alleged that no advertisements for any post in DCW were published apart from the advertisements for the post of legal counsellors. It i
